Constitution shredded

By Alex Tawanda Magaisa

AS Americans commemorated the tragic events of September 11, Zimbabwe silently witnessed a major assault on human rights. On the same day the Supreme Court dismissed ANZ’s (publishers

of the Daily News) application challenging the constitutionality of certain sections of the Access to Information and Protection of Privacy Act (Aippa).


The application was dismissed on the basis of the “Clean Hands” doctrine in that the company had failed to comply with the Act that requires all newspaper companies to be registered by the Media and Information Commission (MIC).


That decision is remarkable because it represents a major setback to the protection and enjoyment of human rights in Zimbabwe.


With all due respect to the Supreme Court, it may have erred in its reliance on the controversial “Clean Hands” doctrine in a matter involving fundamental constitutional rights. We must question the suitability of applying this equity-based doctrine and advance the argument that the doctrine is inapplicable as a bar to constitutional remedies.


According to Black’s Law Dictionary (2000) a party cannot seek equitable relief or assert an equitable defence if that party has violated an equitable principle such as good faith. It bars relief to persons who are guilty of misconduct in the matter for which they seek relief. It is a positive defence that is available where the complaint by the claimant is equitable.


Equity refers to a select set of remedies and associated proce-dures and normally these equitable doctrines and procedures are distinguished from “legal” ones. Equitable relief is generally available when a legal remedy is insufficient or inadequate. The distinction between law and equity arose in England where there were separate courts of law and of equity. These rights and procedures were created to provide fairness, unhampered by the narrow confines of the old common law or technical requirements of the law.


However, in modern days separate courts of equity have largely been abolished and the same courts that may award a legal remedy have the power to prescribe an equitable one. It is notable also that it is quite a controversial doctrine, particularly in the sphere of public law where the formulation is that the responsibility of the state is not engaged when the complainant has acted in breach of the law of the state. As an equitable rule extended to the domain of law, it is necessary to be cautious when applying it, particularly in cases where fundamental legal rights are involved.

The matter before the Supreme Court was not a matter of equity but one where fundamental constitutional rights were involved and the court ought to have taken caution in applying this doctrine. Quite surprisingly, it was a unanimous decision, meaning that no single member of the bench saw anything amiss in the blanket application of this doctrine and its implications in relation to the enjoyment of constitutional rights.


The decision has the implication of undermining the supremacy of the constitution by relegating constitutional rights below the dictates of parliamentary legislation. It makes a mockery of the constitution and subjects citizens to the whims of the ruling party with a parliamentary majority. The constitution is the fundamental law of the country with which all legislation must comply. If legislation contravenes the constitution citizens are entitled to approach the Supreme Court to strike out the offensive sections. This is what ANZ did but the court accepted the state’s argument that, since the ANZ had not complied with the registration requirements of the law they were challenging, they had “dirty hands” and the court could not assist them.


The implication is that citizens must first comply with a law even if that law violates their fundamental rights guaranteed by the constitution before challenging it in court. The ruling party can, at any time, exercise its parliamentary majority to infringe people’s rights knowing full well that they will be forced to comply as they cannot approach the court unless they have done so lest they be tainted with dirt for refusing to obey the law. It raises the question of whether it is the constitution or an oppressive piece of legislation that they ought to obey. It makes a mockery of constitutional guarantees of protection and enjoyment of human rights to expect citizens to comply with infringing laws first before challenging them.


There may indeed be situations where giving away the rights in compliance with legislation will effectively close the door to the challenges against the law. For example, where a piece of legislation deprives one of his entire property, if that person so complies, he will be left with no resources to make a constitutional challenge. It does not make sense that when faced with laws that violate their freedoms citizens should sit back and accept the violation and then complain afterwards.


The constitution specifically gives citizens the right to approach the court to challenge the legislation and without the help of the court the citizens will be left at the mercy of the party with a parliamentary majority. In a situation where the ruling party does not have the necessary majority to change the constitution, it can always draw up parliamentary legislation that deprives people of their rights, thus circumventing the constitutional amendment process. They can do so especially where they seek to effect certain measures that can have lasting effects knowing full well that by the time the people challenge the constitutionality of the law they will have complied in order to satisfy the “Clean Hands” doctrine to get access to the court. By then, the state will have achieved, through parliamentary legislation, what it may not do through the constitutional amendment procedure. The rule that forces compliance before approaching the court primarily serves the interests of the state and not the rights of applicants.


Further and in any event, persons who challenge the constitutionality of legislation normally do so when they have been arrested for violating that law. For example, a person may be arrested under the Public Order and Security Act for positive action that is deemed to violate the law. If that person were to challenge the constitutionality of the section of Posa in the Supreme Court, will the court seek to determine whether he has “clean hands” before allowing him audience? For indeed, in terms of its reasoning in the ANZ case, a party that has failed to comply with the law lacks clean hands.


It may be argued that in the ANZ case, the violation was clear and accepted, so the analogy does not apply. However, using their line of reasoning, assuming that the constitutional challenge is made after accused has been found guilty by a trial court, does it mean that the Supreme Court will not give him audience simply because by reason of his guilt he has “unclean hands”? Even an accused who has confessed to committing an offence is still entitled to constitutional protection by the courts when he alleges that his constitutional rights have been violated.

Prisoners who have committed offences against the state are still entitled to that protection despite having so-called “unclean hands” for disobeying the laws of the state. Clearly the constitution allows challenges against legislation at any point and to use the “Clean Hands” doctrine to bar constitutional challenges would seem to close the door to legitimate complaints that citizens may have against oppressive legislation.


The decision of the Supreme Court seems to be “lose your rights first and then complain later”. Ideally the court must ensure that rights of citizens are adequately protected by promoting their uninterrupted enjoyment. If a party has an opportunity to ask the court’s assistance to maintain the enjoyment of rights before a piece of legislation is used to violate them, the court must take positive steps to ensure adequate guarantees are in place. If there is a chance to stop the erosion of rights, the court must actively curtail such erosion. The constitution becomes a worthless piece of paper if the rights that it guarantees can only be enjoyed subject to parliamentary legislation.


The ANZ was perfectly entitled to challenge a law that had the effect of interrupting its enjoyment of constitutionally guaranteed rights. With respect, it does not make sense to force a party to comply with legislation that deprives it of the very rights that it seeks to protect. Quite reasonably, the ANZ took pre-emptive action to safeguard the enjoyment of its rights and it disclosed this to the court. Its conduct was neither dishonest nor improper.

Prior to the legislation, the ANZ was operating within the laws of the country and when Aippa was enacted it changed the legal landscape by interrupting ANZ’s rights. Surely ANZ was entitled to challenge this interruption of its rights.


At the time of challenging the law it was operating legally and as its application was in terms of the constitutional requirements, its lack of registration did not necessarily make it illegal. Assuming that on the merits the sections of Aippa were found to be unconstitutional, what would be the positive result for ANZ, other than for future purposes, when by complying with the legislation it will have already lost rights for which it sought protection?


Furthermore, although the court stated that the door is not yet closed to ANZ’s challenge, when its reasoning is taken to its logical conclusion ANZ already has “unclean hands” because it has already violated the law. There is no guarantee that MIC will grant ANZ the licence to operate.

Indeed, it may say that ANZ has unclean hands although if it does so, it would be misapplying the doctrine of “Clean Hands”.


But even if they are deemed clean, they would have lost the rights for which they sought protection. “Clean Hands”, it would appear, is a judicial mechanism to force citizens to comply with laws even if they doubt their constitutionality. Instead of protecting citizens against infringement of their rights, the court appears to be actively participating in the enforcement of oppressive legislation. Assuming that ANZ’s application at the MIC fails, will their attempt to register cleanse their dirty hands? It is difficult to see how the Supreme Court will allow the ANZ to submit its application unless it reconsiders the usefulness of its “Clean Hands” doctrine.


This case is not about the arrogance of the Daily News and its publishers but about protecting the rights of citizens to approach the Supreme Court for constitutional protection regardless of the state of their hands. Indeed, the guilty also deserve constitutional protection. The “Clean Hands”

doctrine is a useful principle in equity and some aspects of the common law but its extension to the realm of constitutional law is worrying and controversial. The area of fundamental rights is one that the courts must safeguard to ensure that people enjoy their freedoms. In applying the doctrine, the Supreme Court has taken a conservative approach to human rights jurisprudence. Instead of actively safeguarding rights and the constitution, the court is paying allegiance to parliamentary legislation no matter how much it infringes on citizens’ rights.


When a party takes pre-emptive action to safeguard its freedoms, the court must actively facilitate that enjoyment. Its foremost duty is to uphold the constitution. The court’s decision has had the effect of not only denying the ANZ its rights by forcing it to submit to the law that it is challenging, but with the closure of the Daily News, it has deprived the majority of the population their freedom to access information and choice. Widely interpreted, the “Clean Hands” doctrine will have far-reaching consequences on the protection and enjoyment of fundamental constitutional rights in Zimbabwe. Its effect is that before approaching the courts, citizens will be required to lose their rights by compliance to oppressive laws rendering the enjoyment of rights a nullity. The court ought to have been more careful before applying a traditional doctrine of equity in a matter that involves fundamental constitutional liberties. Not only for ANZ but also for those that purport to champion the rights of citizens, this decision should be a major cause for concern.


Alex Tawanda Magaisa is lecturer in law at the University of Nottingham, UK.